March 10 – 18, 2013
In March of 2013, our delegation of U.S. lawyers and guests visited this island which is only 90 miles from the United States, but yet seems ever so distant in many respects. My impressions of Cuba are that of a mysterious, vibrant, and exciting place where every day brings a sense of adventure. The legal structure and the real world struggles of the Cuban people are what brought us to this Caribbean island.
As part of our international exchange our delegation undertook a comprehensive study of the Cuban legal system, from the teaching of law, to the judicial system to the civil and family codes, and of course to relations between the our two countries. What we found is that the Cuban legal system has many similarities to that of the United States. Their legal system, like other countries, deals with basic business and conflict resolution structures. For example they have a Family Code, they deal with the traditional contracts such as buying and selling, and also deal with inheritance and property rights. The goal of my remarks is not to outline the elements of the Cuban legal system, but rather for the reader to know that in many ways their process is similar to ours. The Cubans we met with did point out that since guns are prohibited in Cuba, they do not have any shootings of judges and lawyers as we do in America. They admit that there is some domestic violence, but not as much as in other countries. Children have a high priority and are protected. In the case of family disputes the Cubans try to resolve the differences through informal mediation. Divorces are easy to get and the country utilizes a no fault approach. As to custody, the mother is favored, the children’s preferences is considered and the father may present evidence that he would be the best custodial parent. The Cubans feel that they have a very sensible court system which is not bogged down with procedures or roadblocks to a resolution. In all, we found that Cuba has a good legal infrastructure.
Cuba is a country of 11.2 million people that has three major focuses for the people: 1) Health Care, 2) Education, and 3) Sports. We were told that they care deeply about spirituality and family. In spite of free health care, education, and housing the Cuban people are struggling as their average income approximates $20/month. They have very little, and much of the blame is directed at the U.S. “economic embargo.” The Cubans very much want normal relations with the United States and they do not understand why this cannot happen. Cuba and its people have much to offer and one cannot but admire what they do with the little they have. Cuba is changing for the better. This wave of change has occurred since the retirement of Fidel Castro. For example, Cubans are now allowed to travel abroad and are free to come to the United States. The government now permits limited sale of houses with the understanding that real property remains in ownership with the State. Restrictions have also been eased on private enterprises. For example it is now easier for Cubans to own small restaurants and, in fact, small private market ventures are encouraged as some Cubans are now being taken off the government payroll. It is interesting that two-thirds of the law and medical students are female. A male law professor told us that females are generally more focused.
Those of us that traveled to Cuba, as most Americans, do not see a benefit to the U.S. for restricting travel to Cuba. From all we can gather it is a policy which has outlived its usefulness. The Cubans have so much to offer and they want to have political and personal relations with us. The new generation of Cubans is thinking about the future. And as we were told by one high ranking host, “ Can’t we just work together?”
By: Richard Pena
Daily Journal of Notes
March 12, 2013 Habana, Cuba
By: Samuel L. Boyd
Leader: Richard Pena
Location: HQs, Union Nacional De Juristas
Official Host/Greeter: Dra. Dorys Quintana Cruz
Speaker: Professor Evelio Ramirez Kindelan – Law Professor, Board Member of the Constitutional Law Committee.
Topics: History of Constitutional Law Development (4 Constitutions)
History of Cuba – U.S. Relations
Cuban Historical Issues leading to the 1959 Revolution
History of Three (3) Constitutional Reforms
Analysis of Current Constitutions, Electoral Organization & Process, Supremacy of the National Assembly, Absence of Political Parties in Electoral Process, Absence of Compensation for National Assembly Members
Role of Communist Part as Advisor, but not manager of Political Process.
The Professor is a member of the University of Habana Law School. He once visited Tulane University to work on Environmental Law (Cuba) developments. Since, he has been limited by U.S. sanctions from visiting colleagues in the U.S.
Cuba has 11.2 million population which is not governed by a unitary government; rather, a confederation of 15 Provinces and 168 Municipalities. Government exists at the Unitary, the Provincial, and the Municipal levels (both judicial and legislative at each level.)
Cuba was a Spanish Colony for four (4) centuries. Its law is based upon the Civil Law of the Roman-French system, whereas the U.S. is based upon the Anglo-Saxon system. However, it is organized, the systems produce comparative legal outcomes – “the law is the law.”
The Professor covered the Colonial era, the Platt Amendment (U.S. events of 1905, 1912, 1917, 1933 as “intentions”) generated four (4) treaties regarding: (1) Guantanamo Base; (2) Platt Amendment based International Treaty; (3) Treaty concerning Cuba’s 3 commodities (sugar, coffee, tobacco) called a Reciprocal Cooperation which affected duties; and (4), Isle of Pines (meaning “youth”) Treaty regarding the island 77 miles south of Cuba. The Treaty of Paris put an end to the Spanish-American War, but omitted restrictions on Cuba’s use of the Isle of Pines. In 1924, a Treaty regarding the Isle of Pines was submitted and approved by the U.S. Senate. In 1940 the extant Constitution was replaced, and that opened the door to elections in Cuba whereby the power could obtain power by voting.
Thereafter, General Bautista appeared, executed a coup d’état and declared the 1940 Constitution null and void and passed the new Constitutional status – a Dictatorship. 20,000 Cubans were killed under his authority. His atrocities attracted the commitment of Fidel Castro, a young law student and lawyer who organized and commanded a rebellion. He was imprisoned, then exiled to Mexico and the U.S. Fidel returned to Cuba in 1956 on a small “yacht” with 82 persons and moved through the mountains east of Habana. Citizens began to unite with Castro and within 24 months he defeated Bautista. Like the 13 colonies in the original U.S., Cuba established 13 Provinces to address government affairs in the municipalities and began annexing other provinces. Cuba declared that the 1940 Constitution was again the fundamental law of the country, slightly modified regarding the origins of power. In 1976, the Council of Ministers was introduced, but did not alter the Revolution outcomes.
Cuba has always had a Constitution, and it is still in force. It was reformed, approved by the referendum on 2/16/1975 by a vote of 98% of the eligible voters, 97.7% approving the Constitution. That Constitution has had 3 Amendments:
(1) 1978, the name of the Isle of Pines was changed to the Isle of Youth, which was being populated by young people, hence the name change. Young couples were provided a house if they populated the Isle of Youth. 50,000 youths studied on the Isle of Youth then returned to Africa.
(2) 1962, Cuba expelled from Organization of American States, looked for other alliances. Only Mexico and Canada retained relationship with Cuba. All other Latin Countries cut off relationships.
A second referendum was held to adjust to new conditions regarding trade, economic circumstances, laws of foreign investment, and tourism. The changed relations resulted in a loss of 85% of Cuba’s export trading, leaving only 15% of its trade with the rest of the world.
(3) President Bush promised to put an end to the Cuban System… the “Bush plan”, so, more reform resulting in obligations of Cubans to dedicate some time for community service by all over the age of 14. The Cuban government approved 3 reforms to counter the Bush Plan: Article III, placed after Article 137, which declared unchangeable the Cuban social, political, and economic systems – solidifying the Cuban resolve.
All Constitutions have four (4) parts: Forward (purposes); Organic Section (the organs of the state and how they operate); thematic section (rights of the people); and announced reform clause(s). Thus, the Cuban Constitution has 15 Chapters, 137 Articles and 1 Special Provision after Article 137.
Cuba does not have a Presidential power base. There is no President over the government. The people directly elect 612 members (one for each 20,000 inhabitants), if the population is less than 20 inhabitants in a given area, they are allocated 2 of the 612 member persons. All elections are by secret vote and the counting is public for those who desire to attend the count. The 612 constitute the National Assembly.
Council of State has 31 Representatives (President, first Vice President, etc.) It is the top authority and is permanently in session. They can act if the National Assembly is not in session.
Critically, the government, including the Courts, is elected by the National Assembly. The correlative positions at the Provincial and Municipal levels are similarly elected at their levels, respectively.
Cuba is not a representative Democracy. The people elect municipal officials. The national and provincial elections are held every 5 years. There are no political parties, no contribution, and any citizen may nominate himself/herself or another person in the municipality. Citizens speak about the candidates at the electoral poll and vote. There are no paid politicians. Cubans are not paid for service in the National Assembly (612), which is the highest authority in Cuba.
Cuba has not used the death penalty in 14 years. It is reserved for only the worst violations.
Members of the National Assembly have prestige, but no privileges. They receive pay only from their “day job.”
Voting Lists are updated constantly, and citizens can request updates that the government has overlooked.
The Communist Party has around 600,000 of the 11.5 million population. It has no power to direct a citizen how to do his or her job. A refusal of a citizen to follow the advice or direction of a party member is not unlawful and has no penalty. The Party makes policy recommendations but cannot force changes on the government organization.
Dr. Kindelan was very thoughtful and organized in his presentation.
Sam Boyd, Participant
Boyd + Associates